scholarly journals SECURITY OF TENURE AT THE CROSSROAD OF CONFLICTING INTERESTS: THE BRUSSON FINANCE (PTY) LTD SAGA

Obiter ◽  
2014 ◽  
Vol 35 (2) ◽  
Author(s):  
CJ Tchawouo Mbiada
Keyword(s):  
South African ◽  
Informal Settlement ◽  
The State ◽  
Housing Assistance ◽  
Emergency Housing ◽  
Constitutional Right ◽  
The Government ◽  
South African Constitution ◽  
The Right ◽  
National Housing

Section 26 of the South African Constitution of 1996 makes provision for the right to have access to adequate housing (right to housing) for everyone. The section further enjoins the State to devise measures within the availability of its resources, to progressively realise this right. This has led to the adoption/enactment and implementation of a number of statutes and policies such as the Housing Act (107 of 1997), the Breaking New Ground of 2004, the Upgrading of Informal Settlement Programme of 2004, the National Housing Programme for Housing Assistance in Emergency Housing Circumstances of 2004, the National Housing Code of 2009 and the Outcome 8 Delivery Agreements: Sustainable Human Settlements and Improved Quality of Household Life of 2010. In passing, adopting and implementing these statutes and policies, the Government is discharging its obligations under section 26 of the Constitution to provide housing to all citizens. However, the effort of the state to fulfil its constitutional mandate to realize the right to housing is under severe threat following the Brusson Finance (Pty) Ltd matter which I refer to as “saga” (hereinafter “Brusson”). The Brusson saga refers to a number of people who were fraudulently deprived of their property (used a guarantee) as a result of a well-orchestrated scam offering credit facilities to those with bad credit records who could no longer receive credit facilities from financial institutions. As a result of such fraudulent deprivation of their property, two of the victims launched proceedings to recover their property. That case and the subsequent one analysed below, are used only to illustrate the Brusson mechanism and difficulties encountered by victims to get back their property. Furthermore, there are other decided cases. Some other cases are likely to be lodged, all in connection with Brusson, hence the word “saga”. These cases serve only as a point of departure for this note, and comments made thereto go beyond the scope of the judgments. These comments are extended to the Brusson scheme in general and should not in any way, be constrained or limited to the findings of the court. In other words, the comments are not against the findings of the courts. The Brusson saga resuscitates the debate of the horizontal application of the Bill of Rights to private disputes when a violation of a constitutional right may be invoked by either party. This necessitates the granting of remedies other than those provided for by the relevant statutes when such remedies would not suffice to satisfactory remedies to all the parties. Unless such remedies are granted to salvage the situation, many beneficiaries from the Brusson scam will be left homeless (if not already) in the near future, thereby curtailing Government effort to provide security of tenure and reduce homelessness countrywide. In order to understand the difficulties and complexities encountered by all parties (court, liquidators and the National Credit Regulator) to transfer properties back to the original home owners, I provide an in-depth mechanism of the Brusson’s scheme.

scholarly journals The limitation of the discovery rules of Court against the right of access to information in South Africa

2017 ◽  
Vol 13 (3) ◽  
pp. 1029-1051
Author(s):  
Rashri Baboolal-Frank ◽  
Fola Adeleke
Keyword(s):  
South Africa ◽  
South African ◽  
Access To Information ◽  
Legal Analysis ◽  
Civil Proceedings ◽  
Access Information ◽  
Constitutional Right ◽  
South African Constitution ◽  
The Right ◽  
Right Of Access

Abstract In South Africa, the Promotion of Access to Information Act 2 of 2000 (PAIA) gives effect to the right of access information in Section 32 of the South African Constitution (the Constitution). Section 7 of PAIA provides that PAIA does not apply to records required for criminal or civil proceedings after commencement of proceedings where access to that record is already provided for in any other law. Where records are obtained in contravention of Section 7, they are not admissible as evidence in criminal or civil proceedings. The aim of this paper is to determine whether the discovery rules of Court limit the constitutional right of everyone to access information. Consequently, the methodology employed in this paper involves a legal analysis namely: a limitations analysis utilising Section 36, the limitations clause of the Constitution. This paper further engages in case law analysis interpreting the exercise of the right of access to information before PAIA was passed and after PAIA was passed to highlight the anomaly of the application of Section 7. This paper argues that Section 7 unconstitutionally limits the ambit of the right of access to information and a direct constitutional challenge on this provision is necessary.

A Comparative Study of the South African Constitution

1910 ◽  
Vol 4 (1) ◽  
pp. 1-82
Author(s):  
Lester H. Woolsey
Keyword(s):  
Great Britain ◽  
Comparative Study ◽  
International Law ◽  
South African ◽  
British Empire ◽  
The Self ◽  
The Family ◽  
The Government ◽  
South African Constitution ◽  
The Right

The self-governing colonies of the British Empire are not, it is true, states within the meaning of international law, for Great Britain has, among other things, the legal right to conclude with other nations treaties which affect her colonies. It is, moreover, too much to say that the self-governing colonies will become members of the family of nations. Still it is a fact that England has in recent years granted them more or less participation in the negotiation of treaties affecting their welfare; and in a recent treaty of general arbitration Great Britain expressly reserves “the right before concluding a special agreement in any matter affecting the interest of a self-governing Dominion of the British Empire, to obtain the concurrence therein of the Government of that Dominion.” Consequently these colonies possess a certain standing in international relations which can not be overlooked, and which justifies some comparative study of their fundamental laws. The object of this paper is, therefore, to give a general sketch of the constitution of South Africa, recently approved by the English Parliament, in the light of the earlier constitutions similarly granted to Canada and Australia.

Accessing the Right to Basic Education in South Africa: Four Years after the Ratification of the Covenant on Economic, Social, and Cultural Rights

2020 ◽  
Vol 19 (4) ◽  
pp. 479-502
Author(s):  
Sicelo Makapela ◽  
Pius Tanga
Keyword(s):  
South African ◽  
Basic Education ◽  
Walking Distance ◽  
Cultural Rights ◽  
The Government ◽  
South African Constitution ◽  
The Right ◽  
Human Rights Based Approach ◽  
Depth Interviews ◽  
Survey Questionnaires

Abstract This article examines access to the right to basic education enshrined in the South African Constitution. Underpinned by the human rights-based approach, the study employed survey questionnaires and in-depth interviews as methods of data collection. The results of the study revealed that the majority of the survey respondents contend that the post-apartheid state has fulfilled the right to basic education only to a small extent notwithstanding the existence of pre-schools, primary, and secondary schools located within a reasonable walking distance from the communities. Preference for the three classes was not equally distributed in the population, X2 (2, N= 500) = 99.68, p < 0.05. On the contrary, the majority of government participants interviewed rated the post-apartheid state fulfillment of the right to basic education in the Buffalo City Metropolitan Municipality as fair. Overall, all the government participants had a moderate view regarding the fulfillment of the right.

scholarly journals Recalibrating Everyday Space: Using Section 24 of the South African Constitution to Resolve Contestation in the Urban and Spatial Environment

2021 ◽  
Vol 24 ◽  
pp. 1-31
Author(s):  
Thomas Coggin
Keyword(s):  
South African ◽  
Shape Space ◽  
Prima Facie ◽  
The State ◽  
The South ◽  
African City ◽  
Spatial Environment ◽  
South African Constitution ◽  
The Right ◽  
Everyday Space

Positioned as existing predominantly within a green agenda, the right to an environment (section 24 of the Constitution of the Republic of South Africa, 1996) presents numerous opportunities for rights-based interpretation in the "brown" urban and spatial environment. In this article I conduct such an exercise, focussing on both the right to freedom of movement (section 21 of the Constitution) and the right to the safety and security of the person (section 12 of the Constitution). I begin by drawing out the historical and contemporary spatial implications of both rights, drawing on empirical research that demonstrates how the enclosure of everyday space through gating practices and private securitisation in the South African city serves to extend spatial apartheid into the current day. A siloed interpretation of both rights, however, leads to an impasse between the two. Both rights are prima facie of an equal value in a constitutional setting. To resolve this standoff, I argue for the use of the environmental right as a constitutional value. This is an underutilised right in the South African Constitution, and yet it holds much promise given how it seeks to protect the health and wellbeing of both present and future generations. There are two benefits to employing the environmental right as a constitutional value. First, the environmental right situates both section 12 and section 21 in a symbiosis of individual claims to shared resources, in the process recalibrating the human ecology of the urban and spatial environment away from the centrality of dominant actors and towards a polycentricity of interests. In so doing, section 24 provides a fuller and more connected picture of both rights. Second, the duty implicit in the environmental right reveals how to begin realising these rights on a wider scale that goes beyond individual injustices and towards community justice. I argue strongly that this duty exists on the state: left unattended to, everyday space becomes the preserve of those with the means – financial or otherwise – to shape space according to their own anti-public interests. In this regard, I present two instances of policy and legal choices available to the state that serve to undo contemporary experiences of spatial apartheid

The Scope and Content of Section 75(1)(a) of the Zimbabwean Constitution: An International Law Approach

2020 ◽  
Vol 53 (2) ◽  
Author(s):  
Chiedza Simbo
Keyword(s):  
International Law ◽  
Education System ◽  
Basic Education ◽  
The State ◽  
Education Act ◽  
The Government ◽  
The Right ◽  
Basic Education System

Despite the recent enactment of the Zimbabwean Constitution which provides for the right to basic education, complaints, reminiscent of a failed basic education system, have marred the education system in Zimbabwe. Notwithstanding glaring violations of the right to basic education by the government, no person has taken the government to court for failure to comply with its section 75(1)(a) constitutional obligations, and neither has the government conceded any failures or wrongdoings. Two ultimate questions arise: Does the state know what compliance with section 75(1)(a) entails? And do the citizens know the scope and content of their rights as provided for by section 75(1)(a) of the Constitution of Zimbabwe? Whilst it is progressive that the Education Act of Zimbabwe as amended in 2020 has addressed some aspects relating to section 75(1)(a) of the Constitution, it has still not provided an international law compliant scope and content of the right to basic education neither have any clarifications been provided by the courts. Using an international law approach, this article suggests what the scope and content of section 75(1)(a) might be.

THE VALUE OF LOVE IN THE SYSTEM OF FORMATION OF THE PROFESSIONAL MATURITY OF THE EDUCATOR

2020 ◽  
Vol 1 (10(79)) ◽  
pp. 12-18
Author(s):  
G. Bubyreva
Keyword(s):  
Russian Federation ◽  
The State ◽  
Educational Process ◽  
Wide Range ◽  
The Family ◽  
The Russian Federation ◽  
The Government ◽  
The Individual ◽  
The Right

The existing legislation determines the education as "an integral and focused process of teaching and upbringing, which represents a socially important value and shall be implemented so as to meet the interests of the individual, the family, the society and the state". However, even in this part, the meaning of the notion ‘socially significant benefit is not specified and allows for a wide range of interpretation [2]. Yet the more inconcrete is the answer to the question – "who and how should determine the interests of the individual, the family and even the state?" The national doctrine of education in the Russian Federation, which determined the goals of teaching and upbringing, the ways to attain them by means of the state policy regulating the field of education, the target achievements of the development of the educational system for the period up to 2025, approved by the Decree of the Government of the Russian Federation of October 4, 2000 #751, was abrogated by the Decree of the Government of the Russian Federation of March 29, 2014 #245 [7]. The new doctrine has not been developed so far. The RAE Academician A.B. Khutorsky believes that the absence of the national doctrine of education presents a threat to national security and a violation of the right of citizens to quality education. Accordingly, the teacher has to solve the problem of achieving the harmony of interests of the individual, the family, the society and the government on their own, which, however, judging by the officially published results, is the task that exceeds the abilities of the participants of the educational process.  The particular concern about the results of the patriotic upbringing served as a basis for the legislative initiative of the RF President V. V. Putin, who introduced the project of an amendment to the Law of RF "About Education of the Russian Federation" to the State Duma in 2020, regarding the quality of patriotic upbringing [3]. Patriotism, considered by the President of RF V. V. Putin as the only possible idea to unite the nation is "THE FEELING OF LOVE OF THE MOTHERLAND" and the readiness for every sacrifice and heroic deed for the sake of the interests of your Motherland. However, the practicing educators experience shortfalls in efficient methodologies of patriotic upbringing, which should let them bring up citizens, loving their Motherland more than themselves. The article is dedicated to solution to this problem based on the Value-sense paradigm of upbringing educational dynasty of the Kurbatovs [15].

Sources of the recognition of belligerent status

1977 ◽  
Vol 17 (192) ◽  
pp. 111-127 ◽  
Author(s):  
Charles Zorgbibe
Keyword(s):  
Civil War ◽  
19Th Century ◽  
The State ◽  
Sovereign Power ◽  
Equal Status ◽  
Positive Law ◽  
Unilateral Action ◽  
The Government ◽  
The Right ◽  
The 19Th Century

“Whenever a large organized group believes it has the right to resist the sovereign power and considers itself capable of resorting to arms, war between the two parties should take place in the same manner as between nations…” This statement by de Vattel in the 19th century seemed destined to take its place as a part of positive law, constituting part of what was known as recognition of belligerency, tantamount to the recognition by the established government of an equal status for insurgents and regular belligerents. When a civil war became extensive enough, the State attacked would understand that it was wisest to acknowledge the existence of a state of war with part of the population. This would, at the same time, allow the conflict to be seen in a truer light. The unilateral action of the legal government in recognizing belligerency would be the condition for granting belligerent rights to the parties. It would constitute a demonstration of humanity on the part of the government of the State attacked and would also provide that government with prospects for effective pursuit of the war. By admitting that it was forced to resort to war, it would at least have its hands free to make war seriously.

scholarly journals THE RIGHT TO MOTHER-TONGUE EDUCATION: PRACTICABLE OR NOT?

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
Chrizell Chürr
Keyword(s):  
South African ◽  
Basic Education ◽  
Mother Tongue ◽  
Cumulative Effect ◽  
The South ◽  
National Education ◽  
Mother Tongue Education ◽  
South African Constitution ◽  
The Right ◽  
South African Schools Act

Mother-tongue and mother-tongue education are recognized worldwide as one of the most efficient ways to function cognitively and socially. This article addresses the role of proper mother-tongue education with an emphasis on the importance of “language” since language is vital to a child’s right to a basic education in all its dimensions. Without mother-tongue education, every child’s right to learn and to become a skilful adult, able to participate independently in society, is at risk. The cumulative effect of the South African Constitution, the National Education Policy Act, the South African Schools Act, several international instruments and a number of ground-breaking cases, as well as the interaction between them on mother-tongue education will be examined. The implementation of certain education models will also be proposed.

scholarly journals IS CYBER SEARCH AND SEIZURE UNDER THE CYBERCRIMES AND CYBERSECURITY BILL CONSISTENT WITH THE PROTECTION OF PERSONAL INFORMATION ACT?

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
Melody Musoni
Keyword(s):  
Personal Information ◽  
The State ◽  
Search And Seizure ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Constitutional Right ◽  
The Right

The focus of this note is to analyze whether the Cybercrimes and Cybersecurity Bill provides a harmonization between search and seizure and the constitutional right to privacy. This will be achieved by discussing the State powers of search and seizure in cyberspace vis-à-vis the right to privacy as envisaged in the Protection of Personal Information Act. Further, this note investigates whether the Cybercrimes and Cybersecurity Bill achieves the purpose of combatting cybercrimes without the infringement of the right to privacy. Subsequently, the article provides plausible recommendations on how the State should lawfully conduct searches and seizures of articles related to cybercrimes.

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